The first, you ask? What about United States v. Miller (1939)? The case that ruled in favor of a state law banning sawed-off shotguns? Well, depending on who you ask, it either protects the individual right to bear militia-grade arms or it protects the collective right to establish militias. My suspicion, given how seldom it has been cited over the past 68 years, is that it protects nothing at all. The Supreme Court is bound to cite Miller when it issues its ruling next year, and I look forward to watching our esteemed jurors in black robes try to coax anything useful out of it. I wish them luck.
Most of the usual approaches to interpretation aren't going to work, either. Take original intent, for example. The obvious intent of the Framers was to give the people of the United States the power to start a future revolution if necessary (see Jefferson's "tree of liberty"/"blood of tyrants" letter), but somehow I find it unlikely that the Supreme Court will rule that DC residents must be allowed to own handguns just in case they decide to violently overthrow the government.
So we have a problem here: The Second Amendment has never been meaningfully interpreted by the Court since 1789, the United States of 1789 was a very different country, and so, goodness, how can today's Court make sense of it all?
I doubt Chief Justice Roberts and company are reading my blog and taking notes, but my suggestion would be to look at a lesser-known case that came about at the end of the McCarthy era: Konigsberg v. State Bar of California (1957 and 1961). In Konigsberg, the State of California refused to grant a law license to Raphael Konigsberg because he refused to answer questions about his views on communism. He correctly cited this intrusion as a violation of his First Amendment rights. The Supreme Court disagreed with him, so Konigsberg's central finding is not a precedent that I support, but Dave Kopel points out an interesting footnote to the ruling:
[An absolutist interpretation of the First Amendment], which of course cannot be reconciled with the law relating to libel, slander, misrepresentation, obscenity, perjury, false advertising, solicitation of crime, complicity by encouragement, conspiracy, and the like, is said to be compelled by the fact that the commands of the First Amendment are stated in unqualified terms: "Congress shall make no law ... abridging the freedom of speech, or the press; or the right of the people peaceably to assemble ..." But as Mr. Justice Holmes once said: "[T]he provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of growth" ... In this connection also compare the equally unqualified command of the Second Amendment: "the right of the people to keep and bear arms shall not be infringed."The Konigsberg footnote suggests that the First Amendment's individual right to free speech can be interpreted--and, when necessary, restricted--on the same terms as the Second Amendment's right to bear arms. So if we're going to construct a Second Amendment doctrine from scratch, why not base it on First Amendment doctrine?
When a law challenges the First Amendment right to free speech, it generally has to satisfy two criteria:
- The law must serve an essential, necessary, and compelling state interest ; and
- It must constitute the least restrictive means of serving that state interest.
But enough of what I think. Does a compelling state interest/least restrictive means standard for the Second Amendment make sense to you, gentle readers? Share your thoughts in the comments field below.
- Justices to Decide on Right to Keep Handgun (The New York Times)